Before getting started on the blog entry of the week, a couple of housekeeping matters. First, my daughter comes home from her first semester freshman year Thursday evening. It is a long break for her. We do have travel plans the week after Christmas. There are also a few days in January before she goes back where there are travel plans. I may or may not have a business trip in January as well. So, the blog entries in terms of their timing of when they appear during the week or when they appear at all may be hit or miss for a little while. I don’t think you can expect a blog entry the week after Christmas. Also, the week of January 9 might not see a blog entry either. Otherwise, my plan is to get up blog entries over that period of time, which will go into the third week of January, but the particular day of the week it goes up may vary more than usual. After this blog entry, my next blog entry is going to be the top 10ish blog entries of the year.


Turning to the blog entry of the day, it is a published decision from the Eighth Circuit decided on December 1, 2022, Alberty v. United States of America, here. My thanks to Prof. Leonard Sandler, a clinical law professor at the University of Iowa for sending the case along to me. The case asks the question of what happens when a federal courthouse is not accessible to a person with a disability, a person gets injured as a result of that, and sues for personal injuries. Does the federal government get a get out of jail free card on the grounds of sovereign immunity for tort claims? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the discretionary functions exception to the Federal Tort Claims Act waiver of sovereign immunity applies; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





Alberty is in his sixties and has a visual impairment. The building’s east exit, where Alberty fell, has concrete stairs leading down to a sidewalk. At the top of the stairs are four concrete bollards, each separated by a few feet of space. Running along either side of the stairs is a flat area, level with the top step. The parties refer to these areas as the “south walk” and the “north walk.” The walks meet the sidewalk at a twenty-six-inch vertical drop. As Alberty left the building, he noticed the concrete bollards. He presumed they were meant to deter pedestrians from proceeding past them. So he went around them, along the south walk. When he reached the end of the south walk, he fell onto the sidewalk below, breaking his leg and elbow. The injuries required two surgeries followed by several months of physical therapy. Alberty brought a tort claim against the government alleging that it was negligent in designing and maintaining the paved walkway outside the building. The federal government defended on sovereign immunity grounds.



Court’s Reasoning That the Discretionary Functions Exception to the Federal Tort Claims Act Waiver of Sovereign Immunity Applies


  1. The Federal Tort Claims Act (FTCA), 28 U.S.C. §1346 here, authorizes district courts to hear suits against United States for personal injury. That waiver is limited and contains an exception involving discretionary functions performed by a government agent.
  2. The discretionary exception applies when the government’s agent, in this case the Gen. Services Administration, acts pursuant to its discretion and that discretion implicates policy considerations.
  3. In figuring out whether discretion is involved there are two questions that are asked. First, whether it involves an element of judgment or choice that of being controlled by mandatory statutes or regulations. Second, whether the government employee’s judgment or choice was based on considerations of social, economic, and political policy.
  4. The discretionary decision needs only to be susceptible to policy analysis regardless of whether the employee actually engaged in conscious policy balancing and regardless of whether the discretion involved was abused.
  5. The burden is on the plaintiff to rebut the presumption that discretion is grounded in policy considerations.
  6. For a plaintiff to show subject matter jurisdiction when the discretionary exception is involved, the plaintiff must show either: 1) the government’s decisions about the south walk design did not involve an element of judgment or choice; or 2) if the government had such discretion, it was not grounded in policy considerations.
  7. While the Gen. Service Administration’s website talks about being committed to making federal buildings and facilities fully accessible to all people and ensuring the full integration of individuals with disabilities using governmental facilities, Alberty points to no statute, regulation, or policies behind that commitment. Without more, the website commitment to accessibility lacks the required specificity and mandatory language necessary to strip government employees of discretion. So, Alberty has not shown that the accessibility commitment is anything more than aspirational or a general principle. In short, whether and how to achieve the accessibility commitment are discretionary decisions.
  8. 40 U.S.C. §3312 is of no help either because the statute talks about accessibility to the maximum extent feasible as determined by the Administrator. The statute also does not even specify a particular building code, so the Administrator presumably retains discretion not only how of how to comply but over which code to comply with when codes conflict deviate from one another. Accordingly, Alberty has not pointed to any statute or mandatory regulations that constrain the Gen. Service Administration’s discretion over the building design.
  9. The design of the walkway involves social, economic, and political policy considerations like public safety, cost of design and material, and aesthetics. The GSA report that Alberty cites to show that the building’s exterior was renovated in 2003 even states some of the policy considerations behind that decision.
  10. Discretion over safety warnings are susceptible to policy choices due to the need to balance safety against governmental efforts and costs and the need for professionals on the ground to adapt to the conditions they face in determining how to expend limited resources in the effort to identify dangers.
  11. While Alberty may have been a single individual who fell in a single location, the design and warnings or lack thereof at that location goes to broader policy considerations affecting the broader public like safety, costs, and aesthetics.





  1. The dismissal was without prejudice.
  2. The decision is published.
  3. Unlike the case we discussed here, no state law claim was filed. An important difference between that case and the one discussed here is that there are no private parties involved in Alberty.
  4. No §504 claim was filed.
  5. No claim with the Architectural Access Barrier Board was filed before bringing suit.
  6. Whether policy analysis is involved is a very low bar for the government to meet. In other words, it would be almost impossible for a plaintiff to meet the burden of showing that policy analysis is not involved.
  7. This case is so broad that if a person is injured in a building constructed or altered by the Gen. Services Administration, you can forget about personal injury suits under the Federal Tort Claims Act.
  8. Too early to tell whether this case would be appealed to the United States Supreme Court or a rehearing en banc would be sought. However, it’s hard to believe that either approach would be successful.
  9. If other parties besides the federal government are involved when it comes to accessing the federal courthouse, there may be workarounds to this decision, such as we discussed here. Also, as we discussed some time ago it is possible to use the ADA Architectural Guidelines as a basis for a negligence per se claim in some States. See here for example.